The Path Not Taken: The Global Approach to Free Movement of Persons
| Author | Ailbhe O'neill |
| Position | Senior Sophister Law student and Scholar, Trinity College, Dublin |
| Pages | 111-127 |
THE
PATH NOT
TAKEN:
THE
GLOBAL APPROACH
TO THE
FREE
MOVEMENT
OF
PERSONS
AILBHE
ONEILL*
Introduction
This
article
examines
the
case
law
of
the
Court
of
Justice
of
the
European
Communities
(CJEC)
on
the
free
movement
of
persons
under
Articles
39
(workers),
43
(establishment)
and
49-50
(services)
of
the
EC
Treaty.
That
these
provisions
apply
to
directly
and
indirectly
discriminatory
restrictions
has
long
been
established.'
The
recent tendency
in
the
case
law on
the
free
movement
of
persons
has
been
to
interpret
each
of
these Treaty articles
so
as
to include
within
their
scope
restrictions
that
are
non-discriminatory
in
their
effect
on
these
freedoms.
The
Court
formerly
took
the
same
broad
approach
to
the
free
movement
of
goods under Article
28
but
has
since
retracted
from
this
position
and
now
applies
a
"dual
burden"
test. This
article
explores
the
possibility
of
a
similar
step
being
taken
with regard
to
the
free
movement
of
persons.
This
will
involve
an
examination
of
the
merits
of
the
Court's
later
approach
to
Article
28,
the
extent
to
which
valid
analogies
can
be
drawn
between
the
four
freedoms
under
consideration
and
the
influence
of
the
political
and
legislative climate
on
the
Court's
interpretation
of
these
freedoms.
The
Present
Global
Approach
The
CJEC
has
developed
an
approach
to
the
free
movement
of
persons
which involves
a
departure from
its
previous
focus
on
the
discriminatory
nature
of
restrictions.
The
Court
now
deems
all
restrictions
to
fall
within
the scope
of
the
relevant
Treaty
article
and
applies
an
identical
rule
of
reason
to
determine
whether
or
not
the
restriction
is
valid.
This
means
that
Senior
Sophister
Law
student
and
Scholar, Trinity
College,
Dublin.
See
Craig
and
de
Birca,
EU
Law:
Texts,
Cases
and
Materials
(2
nd
Ed.,
Oxford,
1998)
and
Daniele,
"Non-discriminatory Restrictions
to the Free
Movement
of
Persons"
(1997)
ELRev
191.
2
See
infra,
at
111-114.
©
2000
Ailbhe
O'Neill
and
Dublin
University
Law
Society
Trinity
College
Law Review
Member States must
justify
restrictions
even
when
they
are
not
intended
to
be
discriminatory
and
do not
place a
heavier burden
on
non-nationals
than
on
nationals
of
the
restricting
Member
State.
For
example,
with regard
to
the
freedom
to
provide
services,
the
CJEC
extended
the
ambit
of
Article
49
in
Sager.
3
In
this
case,
the
Court
was
concerned
with
German
measures
which
reserved
the
performance
of
services
relating
to the renewal
of
patents
to
patent
agents and
lawyers.
This
restriction
applied
to
all
parties,
whether
established
in
Germany
or
elsewhere. The
effect
of
this
restriction
was
to
prevent
the
UK-established
company
involved
from
providing
these
services
in
Germany although
it
could
lawfully
provide them
in
the
UK.
The
Court
held
that
such
restrictions
were
permissible
as
long
as
they
were
justified
by
imperative
requirements
of
general
interest,
were
applicable
to
all
and
related
to
conditions
not already
regulated
in
the
Member
State
of
establishment.
In
this
case,
the
restriction
was in
place
in
the
general
interest
-
to
protect
patent
holders
from
getting
unqualified
legal
advice
-
but
the
means
employed
were
not necessary for
the
attainment
of
that
aim.
4
Similar developments
have
occurred
in
the
context
of
freedom
of
establishment
and
the
free
movement
of
workers.
In
Gebhard,
5
the
Court
was
asked
to
determine
whether Article
43
prohibited
a
rule
of
the
Milan
Bar
Council
which
prevented
all
lawyers from
practicing
in
Milan without
registering
with
the
Council.
The
Court
reiterated
the
view
it
had
advanced
in
Sager
that
Member
States
were
entitled
to
set
out
rules regulating
the
exercise
of
professional
activities.
The
CJEC
then
went
on
to
say
that
such
rules
must
be
non-discriminatory,
justified
by
imperative
requirements
in
the
general
interest,
suitable for
the
attainment
of
their
objective
and
necessary
for
the
attainment
thereof.
The
decision
sets
out
an
identical
test
to
that
elucidated
in
Sdger
in
the
context
of
Article
49.
In
Gebhard,
however
the
Court
left
it
to
the
national court
to
decide
whether
the
rules
at
issue
satisfied these
criteria.
The
Bosman
case
6 saw the
application
of
this
rule
of
reason
approach
to
the
area
of
the
free
movement
of
workers.
Here,
a
football player
who
wished
to
transfer
to
another
team was
impeded
from
doing
so
by
the
imposition of
a
transfer
fee
under
Belgian
law.
This
fee
applied
to
transfers
to teams
located within
and
outside
Belgium.
The
3
Sager
v.
Socijtg
Dennemeyer
and
Co.
Ltd.
[1991]
ECR
1-4221.
4
See
also
Her
Majesty's
Customs
and
Excise
v.
Schindler
[1994]
ECR
1-1039
where
a
UK
ban on
lotteries
which
affected
prospective UK
lottery
operators
in
the
same
way
as
those
wishing to provide this
service
from another
Member
State
was
primafacie
caught
by
Article
49.
(The
restriction
in
this case
was
justified
on
the facts.)
5
Gebhard
v.
Consiglio
dell'Ordine
degli
Avvocati
e
Procuratori
di
Milano
[1995]
ECR
1-4165.
6
Union Royale
Beige
des
Socidtds
de
Football
Association
ASBL
and
Others
v.
Jean-Marc
Bosman
[1995]
ECR
1-492
1.
[Vol.
3
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